Issues relating to kids (child custody, child support) Flashcards
Child support
a. Both biological parents have duty of support to minor children. True even if parents were never married. Independent of marital status.
b. Parent who lives in same home as child is usually not subject to court order, that parent provides support routinely by bringing groceries/ buying food.
c. Child support is generally entered against parents NOT living with kid. 2 people
i. Post-divorce, whichever parent didn’t get custody
ii. Father born to child of unmarried woman.
d. Duty to pay continues until kid is
i. 18
ii. or if still in high school, until 19
e. if child has disability—support duty continues indefinitely
Determining amount of child support
follow jurisdiction’s guidelines
i. Usually a percent of parental income, usually combined parental income. For example, guideline might say 20% of combined income. Parent pays that percent based on what they make.
ii. What counts as income for purpose of child support? Broad view
1. Non-cash job perks counts as income. Like company car.
2. Voluntary impoverishment. Gaming system by taking low-paying job. You resign as biglaw partner to be poet. Court will say go back to law firm, will impute income you could have earned
iii. Can be modified through showing of change in circumstances. Anything relating to
1. Wages/ earning capacity of obliged parent. Fired, hurt on job
2. Needs of the child—like child is now older and discovers learning disability and needs tutoring. Enhance obligation is possible
3. Inflation.
4. Guidelines of state themselves are changed!
- Past due payments are not subject to modification, these are debts, owe the dollar amount.
- Can modify only prospectively.
- Encourages people to apply for modification promptly
Court tools if person refuses to pay child support
i. Go after paycheck—file order with your employer. “Wage reduction order.” Automatic diversion
ii. Asset seizure. Car, bank acct, file with IRS and state tax to intercept tax refund, state lottery commission if you hit lottery.
iii. Can take away driver’s license, passport, professional and occupational license,
iv. Cannot get hunting or fishing license.
v. Contempt of court. Lock up
vi. Parent trying to enforce can get attorney fees reimbursed too.
vii. Cannot move out of state if obligor moves→ uniform state statute in every jurisdiction. Uniform interstate family support act (UIFSA). Makes orders enforceable across state lines. Can mail NY order to AZ employer.
viii. UIFSA makes it so modification is only allowed to be modified in original state. AKA Continuing exclusive jurisdiction.
1. Only works if you know where deadbeat spouse is.
Spousal agreement re alimony and child support through separation agreements
h. Remember spouses can agree to things re alimony and child support on their own through separation agreements.
i. Enforceable, subject to financial disclosure and judicial scrutiny
1. Some states scrutiny about conscionability
2. Some states scrutiny is about substantial fairness
ii. If the separation agreement MERGES into divorce decree–> can modifiy
iii. If the separation agreemeht is not merged, not modifiable unless agreement says on its face it can be modified
iv. Exception: child support payments are always modifiable, always under supervision of court and can be modified by court
Child custody
a. Term more common now is parental responsibility
b. Two kinds
i. Phsycial and legal
1. Legal—must make big decisions together
ii. Either can be primarily in one parent or shared between the two
1. Discretionary for judge
Which state has child custody jurisdiction
i. Many cases—no brainer. Entire life story of child and parents in state, that’s the state with jurisdiction.
ii. If relocation to another state-
1. For ex. child born in IL and relocates to FL
a. Uniform Child Custody and Jurisdiction and enforcement act.
i. State has jurisdiction if currently the home state of the child
ii. Or if it was home state of child at any point within last 6 months.
iii. Home state= somewhere kid has lived with parent for 6 mos prior to commencement of proceeding.
1. Former state retains child as resident for 6 months after the move
2. After which jurisdiction goes to new state of residence.
v. If mom keeps moving—doesn’t stay anywhere for 6 mos.
1. No state is home state nor was home state within last 6 mos
2. Backup—state with greatest connection to kid has jurisdiction.
b. Once home state enters judgment, other states must defer to that custody determination, until that kid continues to live in that state.
i. If kid and parent relocate new state can have jurisdiction
How to make custody determination
Apply famous standard of “best interests of the child” standard.
i. “BIC” – totally child-centric. Do not care about parents except as vehicles for child’s welfare. Certain factors, can consider stuff outside these factors
1. age of child, age and health of parents
a. if child is toddler, and one of parents has physical ailment. Maybe better to go to healthier parent who can keep up with child.
2. Health/mental health of parent
3. Substance abuse of parents
4. Wishes of parties-
a. If one parent didn’t want the kid. Not in best interest of child.
b. If child is older than 12, may point to best interest.
5. Whether either parent has new companion and that companion’s character
6. Whether one parent more likely to accommodate visitation of other parent.
a. Best for child to get contact with both parents court assumes
7. Whether all siblings may remain together.
a. Not always a good thing to place all siblings together, like if one sibling abuses sibligns.
8. Whether placement with one family allow continuation of relationship with a beloved extended family member
9. Automatic consideration—history of violence. Either at child or other parent. Almost disqualifying
a. Some states have codified this.
b. Like if parent has murdered one child.
ii. IF issue of shared parental responsibility, look at relationship of parents.
1. If parents bicker, are hostile, acrimonious divorce.
2. Shared parental responsibility is not a good idea
3. Look if parents live closeby. Doesn’t work if people live far away from each other. May not work even if nyc if one person is in riverdale and other is in sheepshead bay.
Peripheral issues to custody- request for custody by nonparents
fact pattern is usually single parent who isn’t doing well. Parent usually leaves kid with sister when she’s AWOL or in jail.
- This lawsuit is now aunt vs. mother. Presumption that it’s in best interest to remain with biological parent.
- Nonparent must show parent is effectively unfit or serious detriment to child for living with biological parent.
- Skews best interest of child analysis.
a. Court ignores to some degree the best interest of child.
b. If parent promises to meet with parole officer and promises to try
i. Otherwise its totalitarian for state to take away child
Peripheral issues to custody- visitation
one parent has primary responsibility, other parent entitled to visitation.
- Almost never denied
- Allowed even if behind on child support
- If primary parent bars the door- you can bring action for contempt of court.
Peripheral issues to custody- petition for visitation by nonparent, like grandparent
- Like grandparent of the other spouse who doesn’t have the primary custody
- Or grandparent of the deceased spouse who didn’t like inlaws
- SCOTUS—parents have DP right to raise kids as they see fit
a. If mom thinks grandparents are bad influence, judge cannot intervene
b. For grandparents to get visitation, must show that denial of visitation would pose a detriment to the child→ creates state interes to override interest of parent
i. State interest can override DP right in Con law.
Peripheral issues to custody- parental relocation
- If custodial parent wants to move must
a. Provide advance notice to court
b. Show reasons to relocate are legitimate.
i. Not just to deny visitation to parent. - At time of relocation court can accommodate the orders
a. To exchange for example, other parent gets kids for whole summer break.
Modification of custody awards
f. All custody awards are modifiable
i. Impossible to predict at 2 what life will be at 15.
ii. Must be change in circumstances that affects best interests of the child
